Loading...
HomeMy WebLinkAbout1984-0429.Ambrey.85-01-15IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU @live Ambrey) and The Crown in Right of Ontario (Ministry of the Attorney General) Before: P. Knopf T. Traves Vice-Chairman Member D. Middleton (Member For the Grievor: C. Paliare, Counsel Gowling & Henderson Barristers & Solicitors For the Employer: L. McIntosh, Counsel Crown Law Office Civil Ministry of the Attorney General Hearing: November 2, 1984 Griever Employer -2- In this case, the grievor Clive Ambrey alleges that he was unjustly “dismissed.” .‘He seeks reinstatement and reimbursement of all monies, benefits and seniority... The Ministry’s position is that Mr. Ambrey’s employment was “terminated” in full accordance with the Crown Employees Collective Bargaining Act and the Collective Agreement governing .his employment. Because of its - position, the Ministry took the initial position that this Board lacks jurisdiction to review or entertain thjs grievance. Counsel for both parties are to be commended for defining and focusing the interesting issues in this case and their achievement of an Agreed Statement of Facts which has been able to set out the necessary background to the case. These facts reveal that Mr. Ambrey began his employment as a Court Constable with the Ministry of the Attorney General on November 10, 1980. His employment continued on a series of fixed term contracts expiring on March 31 of eachyear. It is agreed that he was a member of the “unclassified” public service and thus governed by Article 3 of the Collective Agreement. The remainder of the relevant facts .are most appropriately set out in the parties Agreed Statement of Facts as follows: >. On February 7, 1984, Mr. Ambrey signed a new document which purported to be a “Public Service Act Contract of Employment” for the period from April 1, 1984 to March 31, 1985. That document was executed by all of the necessary signatories on behalf of the Em,ployer and approved on behalf of the Attorney General on February 17, 1984. ,~A copy of that document was delivered to Mr. Ambrey in late February of 1984. 10. Mr. Ambrey filed a grievance dated~ April 24, 1984, stated that he had “been dismissed without just cause” an.d requiring ‘Ire-instatement to (his) former position with reimbursement of . . . monies, benefits and seniority retroactive to .March 29, 1984 . ..‘I. : 11. Mr. Ambrey received an additional one week’s pay in lieu of notice. 12. ~The employment relationship between the Employer and Mr. _, Ambrey was ended without cause. The Ministry’s reply to the grievance at Stage 2 was to say: 6. On March 28, 1984, (then) the Sheriff of the Judicial District of York, Joseph F. Bremner, wrote to Mr. Ambrey advising that Mr. Ambrey’s contract . . . will not be renewed for the 1984185 court-year. 7. Mr. Bremner’s letter, of March 28, 1984 was hand-delivered to Mr. Ambrey on March 29, 1984. 8. Mr. Bremner wrote again to Mr. Ambrey on March 30, 1984, advising that “the letter addressed to you dated March 28, 1984 regarding the non-renewal of your P-104 contract had been rescinded”. Mr. Bremner enclosed with his letter of March 30th a copy of Mr. Ambrey’s “P-104 contract of employment with a commencement date of April 1, 1984”. Mr. Bremner’s letter advised Mr. Ambrey that although the “contract shows an expiry date of March 31, 1985 . . . this is to formally notify you that in accordance with Part 2, Clause E of your P-104 contract, this said contract is being terminated on April 13, 1984”. 9. Mr. Ambrey responded to ,Mr. Bremner’s letter of March 30th, in a letter dated April 3, 1984. Mr. Ambrey’s letter stated that “in the interim between the two letters I had made other arrangements which rule out your belated offer of employment for a further two weeks only”. Mr. Ambrey’s letter further states that “because I was effectively terminated without notice I believe I am entitled to pay in lieu of such notice” and he asked that this be taken “into consideration when preparing (his) final paycheque”. After careful review off the facts presented and the considerations raised on your behalf by Ms. Seville, and investigation of the circumstances, I find that you were not dismissed from the public : service with or without cause, but that -your contract was terminated in accordance with Section 3.11 of the Collective Agreement. You were also paid an equivalent of one week’s pay in lieu of notice in accordance with Section 3.11 of the Collective Agreement. At the hearing, the ministry’s position was basically that the griever’s only rights upon ‘termination” were to one week’s notice under Section 3.1l.of the Collective Agreement or pay in lieu thereof. Since the griever did receive one week’s pay, it was argued that he had no complaint to bring before this Board. Counsel for the ministry stressed the importance of this case to the parties as well :-4< as to the grievor and suggested that several distinct issues ought to be addressed in reaching our decision. We agree that her initial approach to the case is useful and we have thus addressed the issues as she suggests. 1. What is the Status of the Grievor? As mentioned above, it is common. ground that the grievor ‘is an unclassified member of the public service. He is not a civil servant. His employment is therefore. governed by Regulation 881, Section 6 of the Public Service Act as a “Group ‘1” employee. 6 - (1) the unclassified service is divided into the following groups: 1. Group I, consisting of employees who are employed under individual contracts in which the terms of employment are set out and who are employed. i. on a project or a non-recurring kind, ii. in a professional or other special capacity, iii. on a temporary work assignment arranged by the Commission in accordance with ik program for providing temporary help, iv. for twenty-four hours or less during a week, or v. during their regular school, college or university vacation period or under a co-operative educational training program. 2. What ~Righk does the Grievor have under the Collective Agreement? As a Crown Employee who is not a civil servant, the grievor Is governed by Article 3 of the Collective Agreement. The relevant portions of Article 3 are: -. 3.1 The only terms of this Agreement that apply to employees who are not civil servants are those that are set out in this Article . 3.11 Employment may be terminated by the Employer at any time with one (1) week’s notice, or pay in lieu thereof. (emphasis added) 3.14 The following Articles shall also apply to seasonal or part-time employees: Articles 1, 9, 11, 12, 15, 16, 17, 21, 22, 23, 25, 27, 32, 36 and 57. Because Article 3.14 incorporates Article 27, Article 27.6.2 is also relevant: An employee other than a probationary employee who is dismissed shall~ . be entitled to file a grievance at the second stage of the grievance procedure provided he does so within twenty (20) days of the date of the dismissal. (emphasis added) 3. What Rights does the grievor have under the Crown Employees Collective Bargaining Act? The Crown Employees Collective Bargaining Act gives some exclusive powers to the employers and precludes these powers .from the scope of the, collective bargaining: \ 18. (1) (a) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without the generality of the foregoing, include the right to determine, (a) employment, appointment, complement or organization, assignment, discipline, dismissali suspension, work methods and procedures, kinds and location of equipment and classification of position; and . . . such matters will not be the subject of collective bargaining nor come within the jurisdiction of a Board. (emphasis added) However, the individual employees, such as the grievor, are accorded fundamental rights in Article 18 (2) (c): 18. (2) (c) In addition to any rights of grievance under a collective agreement, an employee claiming, . . . that he had been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure proviaed in the Collective Agreement and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under Section 19. Section 19. provides for the resolution of differences between .the parties arising from interpretation, application, administration or alleged contravention of the agreement by reference to the Grievance Settlement Board. To summarize so far, the Crown Employees Collective Bargaining Act gives employees claiming unjust dismissal the right to grieve that matter before the Grievance Settlement Board in addition to any right that may be contained in the Collective Agreement. The Collective Agreement gives employees who have been “dismissed” the right to file a grievance under Article 27.6.2. Finally Article 3.11 gives the employer the right to “terminate” employment with one week’s notice or pay in lieu thereof. Therefore, to understand the right of the grievor, the question arises as to what is meant by the terms “terminate” and “dismissal” in the Collective Agreement and the Statute. This Board has previously dealt ,with the issue of the difference between dismissal and termination and what effect that distinction has on the Board’s jurisdiction. In Re Boucher and Trembley (218/78) tile Board concluded at page 9. ~.~ In our view,, the Board’s jurisdiction extends at a minimum to characterizing any particular set of facts surrounding the ending of an unclassified employee’s employment relationship as a dismissal for cause within the meaning of section 17 (2) (c) or a “termination” within the meaning of Article 3.3 of the collective agreement. To decide otherwise would be ‘to abdicate our statutory responsibilities under section. 17 or 18 of the Crown Employees Collective Bargaining Act which charges us with the duty to decide a claim by an employee that he or she had been dismissed without just cause. Implicit in that duty is a duty to delineate our jurisdiction by determining in each case brought before us whether or not the facts amount to a dismissal or not. The Ministry may not deprive an employee of his section 17 (2) (c) rights by calling a disciplinary dismissal a termination within the meaning of Article 3.3 Similarly, an employee cannot gain greater rights by calling a bona fide-termination a disciplinary dismissal in .:“‘~+ -- order to come within the terms of section 17 (2) cc). Rather, after hearing the evidence of all the circumstances surrounding the severing ~‘~ of the employment relationship this Board must decide upon the proper characterization of each case. For those cases characterized as a termination, the employee will be limited to the protection offered by Article 3.3 ~For those cases, characterized as dismissals, the Ministry must be prepared to meet the requirements of section 17 (2). The conclusion is consistent with the Board’s jurisprudence concerning .section 17 of the Crown Employees Collective Bargaining Act. The Board has consistentlv held that nothing in the collective agreement can derogate from the statutory rights stated in section 17 (2y (SW & Eriksen (12/75), Re Joyce- (21/76) and Re Keeling (45/78) (appl. for -3 review denied, unreported decision of the Ontario Divisional Court dated March 14, 1980). Further, the Board has consistently stated that it and not the employer must assume the task of delineating the Board’s jurisdiction by determining whether or not a.particular set of facts come within the terms of section 17(2)(c) (see Re Leslie @O/77) and Re Haladay (94178). Our decision follows directly from these earlier cases. -,: ._. -8- This reasoning was specifically adopted in the case of Re Miller & MacPhail (530/82 and 531/82) at page 5. In both the Boucher and Trembley and the Miller and MacPhail cases, after reviewing the fact of the situation, the Board concluded that the reasons given for ending the employment of the grievor amounted to “dismissal.” This was because inappropr.iate conduct on the part of the grievor had been alleged. This gave the Board power or jurisdiction to enquire into the justness of the allegation for the dismissal and to then rule accordingly. In an analogous case, the difference between ‘release” and “dismissal” was also explored and the importance of the distinction was revealed. Re Joyce (21/76) at page 20: .,. Similarly and by way of further examples; just as an employee might chaJJenge a decision affected under the Public Service Act or the Interpretation Act, as a fact offending the provisions of section 27 (2) of the Crown Employees Collective Bargaining Act, a probationary “employee” might also daim that a “release” or any termination effective under these pieces of legislation was in fact a dismissal without “just cause”. That is , it is not open to the employer to use the jurisdiction of this Board by unilaterally characterizing its decision as a termination which is other than a.dismissal, if in fact that was the actual basis for the employer’s action. To the contrary, as this Board has earlier stated, it is ultimately ~for this Board to determine the actual basis for and the validity of the employer’s termination regardless of how the employer itself may have characterized its own action. This. jurisprudence of the Board has been favourably commented upon by the Divisional Court in a Crown Appeal of the Miller and MacPhail decision (March 21, 1984, unreported decision of the Divisional Court, Justices Craig, Holland, and Bolland). The Court upheld the finding that there Js a distinction to be drawn ,: between termination and dismissals, and that:%ermination” cannot be deemed to include “dismissals”. On page 2 of the Court’s endorsement, it was -9- commented “the Board recognized the distinction between “dismissal” and “termination” in finding dismissal without cause, but when it turned its attention to remedy, it indicated that termination included dismissal. We have stated that the Board cannot amend the Collective Agreement (Article 27.12j.l’ This must be seen as the Divisional Court’s acceptance of the concept that dismissal and termination are distinct and that “termination” cannot be considered a generic term under the Collective Agreement. Thus it seemsclear from the consistent statements of this Board and their acceptance by the Divisional Court that the Board can and must take jurisdiction to enquire into whether the facts surrounding the ending of an employment relationship actually signifies dismissal or a termination. Only once that question is answered can the remedial jurisdiction, if any, of this Board be determined. However, this Board certainly does have jurisdiction to enquire into whether or not a dismissal or a termination took place. Unfortunately, to date, it does not appear that there has been an articulation of what is in fact the distinction between termination and dismissal. In the previous cases, the fact situations have been clear for the Board to simply make the finding that a ‘dismissal” had in essence taken place. The question of where the line ought to be drawn was not addressed in these cases. However, Counsel for both parties addressed the question in this case. Counsel for the ministry submitted that a termination occurs whenever there is a notice period or pay given in lieu thereof at the end of the employment relationship. Therefore, - 10 - even if a person who has a right not to be terminated without notice in fact receive notice, s/he must be considered to be terininated, rather than dismissed. This makes the reasons for the employment ending irrelevant would only elicit an enquiry into the question of whether notice or pay was given in lieu thereof. ^ Counsel for the grievor argued that it is the reasons for the ending of the relationship that ought to govern. If culpable conduct has been alleged, then the circumstances would indicate dismissal. However, if the reasons for ending the relationship are in fact non-culpable or “neutral”, then the employment relationship must be regarded to have been “terminated.” With great respect to both parties in this case, we are not prepared to accept either of their definitions of the terms termination or dismissal. If the ministry’s definition was correct, then the mischief contemplated in the Joyce case would all too easily occur and an employer could avoid its obligations to employees who are protected from unjust dismissal by simply giving some form of notice and thus trying to preclude employees from access to the grievance procedures and the remedies of reinstatements and/or back pay. Similarly, we cannot accept the agreement of counsel for the grievor. To say that a lack of culpable conduct necessarily indicates. dismissal begs the question because employment may be legitimately ended for reasons other than culpable conduct. Thus the lack of culpability does not necessarily signal a dismissal. However, where the true motivation for ending the employment relationship is the employer’s perception of culpable conduct, this does signify” dismissal. This was accepted in Re Cormier, et al and Counsel for Maritime Provinces (1979), 106 DLR (3d) 182, (NBCA) at p. 187: “I regard disciplinary action by way of suspension, dismissal or financial penalty in the context as being punishment meted out for a specific wrongful act.” - II - Thus, where an employer tries to bring an end to the employment by reason of ‘a desire to react to conduct on the part of an employee, this must be viewed as a dismissal rather than a mere termination. Further, conduct can be non-culpable and legitimately warrant a dismissal in situations such as innocent absenteeism or inability to perform the job. Further, where no inappropriate or unsuitable conduct is alleged and the employment is ended, the onus is on the employer to establish that there has been a bona fide termination. A termination can then be viewed as the ending of an employment relat~ionship for reasons that are other than those resulting from the conduct of the employee. We can now apply these principles to the facts of this case. The Agreed Statement of Facts concludr?d that “the employment relationship between the employer arid Mr. Ambrey. was ended without cause.” Further, there was no suggestion ‘of culpability or inappropriate conduct by Mr. Ambrey in any correspondence from the employer. Therefore, the onus falls to the employer to establish a termination. Apppended to the Agreed Statement of Facts was the ministry’s letter to Mr. Ambrey explaining the reasons for ending his employment .(,Scheduie C). That letter reads in part: In the present day, many levels of government are hard pressed in the area of providing services to the public. The Sheriff’s Office is not an exception and we find that not only must we reduce staff in some areas but establish new criteria for court staff with added responsibility in other areas. On the facts presented to this Board, this statement stands unchallenged. Nothing suggests that there has been anything other than bona fide action by the employer - 12- to end the griever’s employment by reasons of financial restraint. Therefore, this case is distinguishable on its facts from the situation in Boucher and Trembley and Miller and MacPhail; We conclude that on the basis of the facts before us the employer has satisfied us that Mr. Ambrey’s employment was in fact “terminated” within the meaning of Article 3 of the Collectire Agreement. The facts do not support the conclusion that Mr. Ambrey was “dismissed” within the meaning of the Collective Agreement or the Crown Employees Collective Bargaining Act.~ Given this finding, we must turn to what rights, if any, flow to Mr. Ambrey upon his termination. As stated above, his employment was governed by the Collective Agreement and Article 3.11 directly applies. This provides that employees with Mr. Ambrey’s status can be terminated by the employer with one week’s notice or pay in lieu thereof. This can only be interpreted as -the parties’ joint agreement to permit the termination of employees, such as the griever, with one week’s notice or pay in lieu thereof. This Board has no authority to alter this term of the Collective Agreement. Mr. Ambrey did in fact receive one week’s pay in lieu of notice. Thus, we can find no violation of the Collective Agreement. The arguments for counsel for both parties also addressed the question of whether Mr. Ambrey could-~05~ had contracted out of any rights regarding dismissal in the Collective Agreement or under the Statute. But given our conclusions as stated above, these interesting issues need not be addressed in this case and must wait another fact situation for further determination by this Board. i - 13 - In the result, the grievance is dismissed. DATED at Toronto this 15th day of ,January, 1 P. Knopf - Vice-Chairman ----------.------- __--_--_--- T. Traves - Member L -- -------._-~. D. Middleton - Member